*1 On May 21, 2014, the plaintiff filed a writ, summons and complaint dated April 24, 2014 naming as defendants, YP Connecticut Information Services, LLC., YP Holdings LLC., AT & T Advertising Solutions,[1] (“AT & T”) Colleen Coyle and Kenneth Schanke. The complaint is in Nine Counts alleging Disability Discrimination, Nation of Origin Discrimination, False Imprisonment, Wrongful Termination, Whistleblower pursuant to § 31–51m, and Connecticut Unfair Trade Practices (CUTPA).

During the course of the discovery process, the defendants have filed several motions for an order of compliance to obtain information from the plaintiff in relation to information which was contained on his computer devices. The court held a hearing on the defendants' claims that the plaintiff had not accurately relayed to this court the incomplete discovery he provided and had failed to disclose information relevant to the defenses in the action. As a result of the hearing and upon discussion of the parties, the plaintiff provided information and a laptop computer to the defendants for a forensic review. The defendants contend that the plaintiff removed information from the computer and thus the forensic review yielded little if no information but provided evidence that the plaintiff had erased information from the computer before providing it to the defendants for the forensic review. The defendants YP Connecticut Information Services, LLC, YP Holdings LLC, Colleen Coyle and Kenneth Schanke have filed a motion for sanctions against the plaintiff for his failure to comply with court ordered discovery.[2] The plaintiff has filed an objection to the motion. The court conducted a hearing on March 21, 2016, and received evidence and testimony as to the alleged actions of the plaintiff.

The plaintiff was employed since November 2008 by AT & T Advertising Solutions as a Search Engine Marketing Manager. From November 2008 until July 2012 he served in a number of positions with specific duties. The plaintiff's original position involved “assisting digital clients with optimizing their search engine positioning (SEO), paid ad placement on search engines and placement on search engine results.” (Complaint ¶ 119.) While in this position, the plaintiff received raises and was recognized for his sales. In February or March 2011, the plaintiff applied for the position of Performance Manager within the company and was given the new position with AT & T. The plaintiff worked in the New Haven Office in this position. In October 2011, the Performance Manager in Hartford was unable to perform his duties. The defendant transferred him to the Hartford office in November 2011 to perform these duties. He was “on loan” to the Hartford office while still performing his duties in New Haven. He was supervised in New Haven by the defendant Kenneth Schanke. He was supervised in Hartford by the defendant Colleen Coyle. During the course of this employment he received a Code of Conduct and Sales Employee Operating Standards which the plaintiff contends he was asked to violate on many occasions in reference to exercising a “lever” for clients.[3] In doing so, the Plaintiff alleges that he was requested to give free advertising to clients not within the service known as MC2 model which allowed free ads, and thus the request violated the company's code of conduct and policies. The plaintiff contends that he reported the request which he interpreted to be a violation of the rules and engaging in fraud on and against the customers to no avail. After no response to the attempt to report, he requested a meeting with supervisors to discuss the matter. The meeting was scheduled for June 29, 2012 in Hartford. The meeting was attended by his supervisors including Kenneth Schnake who he alleged had ordered him to engage in the improper levers. The plaintiff contends that he suffered a panic attack as a result of the actions of the supervisors at the meeting and during the meeting the supervisors refused to let him leave. The plaintiff alleges this was a false imprisonment by the defendants and as such caused injury to the plaintiff. The plaintiff was suspended on July 2, 2012 after the meeting for insubordination. The plaintiff reported the actions of restraining him at the meeting to the police and on July 12, 2012 his employment was terminated. He brought this action against the corporate defendants and the individual supervisors. The defendants have denied the allegations and have filed special defenses related to his work and conduct upon leaving the employment. The defendant has filed interrogatory and production requests from the plaintiff including the request for a forensic review of his laptop computer. The original request for this information was made on August 19, 2014. The plaintiff filed a motion for extension of time (Docket Entry *1117) but never claimed the request for a court order. The motion requested an extension until October 20, 2014.[4] After no response to the interrogatories and production request, the defendants filed a motion for nonsuit on January 9, 2015. On January 28, 2015, this court entered an order which denied the motion and recognized as the basis for the denial that the plaintiff filed a notice on January 23, 2015 that the plaintiff had complied with the interrogatories. The plaintiff further submitted an objection to the motion contending that, “Entry of nonsuit is inappropriate. Concurrent with the filing of this motion Plaintiff has complied with and objected to Defendants' interrogatories and requests for production. Defendants' 46 interrogatories and 51 requests for production covered multiple entities, spanned nearly fifteen years of time, and sought review and production of potentially thousands of emails and other documents. Additional time was necessary to put this material together.” (Docket Entry # 137.) Contrary to the plaintiff's representation, compliance had not been made. In particular, the interrogatories and production specifically requested the electronically stored information. (Interrogatory # 41 and # 51, Production # 31 and # 12.) In addition although the plaintiff makes it appear that they have objected to some requests, no objections were ever filed with the court. Not only was there no compliance but the objection relayed that the plaintiff had reviewed all of the materials to put them together.[5] Thus, it follows that the plaintiff was aware of the materials he was under an obligation to provide. After the court ruled on the motion for order, the plaintiff did not respond as indicated in the objection and defendants sent correspondence in an effort to obtain the response on June 11, June 19, 2015 and July 7, 2015. There were no responses to the correspondence nor were there any responses to the August 19 interrogatories and production. On September 29, 2015, as a result of the plaintiff's lack of response to a September 25, 2015 request by defendants' counsel, the defendants filed the second motion for order of compliance. In response to the motion and the plaintiff's submission of two notices of compliance to the court, the court scheduled argument on the motion for November 9, 2015. The court conducted argument and all counsel took the opportunity to consult and enter a time table to the court to provide the responses. One of the agreements involved the disclosure of search terms to complete the request for forensic review of the electronic information. An order was entered by the court with dates for compliance. Once again, the plaintiff filed a notice of compliance and defendants responded with the motion for sanctions on March 4, 2015 after the forensic review report provided information that information was deleted. The plaintiffs requested a hearing which was conducted by the court on March 21, 2016.

*2 The defendants' motion for sanctions was filed pursuant to Practice Book Sec. 13–14(b)(5) seeking a dismissal of the action and costs of the motion including attorney fees and expert fees. Practice Book Sec. 13–14(a) provides: “If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, ... or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13–6 through 13–11, the judicial authority may, on motion, make such order as the ends of justice require.” The Practice Book states that the order may include the following: (1) the entry of a nonsuit or default against the party failing to comply; (2) the award to the discovering party of the costs of the motion, including a reasonable attorneys fee; (3) the entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (4) the entry of an order prohibiting the party who failed to comply from introducing designated matters in evidence; (5) if the party failing to comply is the plaintiff, the entry of a judgment of dismissal.”

The defendants' motion requests that the court dismiss the action because of the plaintiff's failure to preserve and provide the electronically stored information. However, the defendants emphasis at this stage is not solely the failure to provide the information but an intentional destruction of the information that they contend has hindered a forensic review and thus defense of this action. The main focus of the discovery at this point is the interrogatory and production requests propounded by the defendants that included identification and production which would, “Identify (by manufacturer, type, model number and phone-number, as applicable) each and every electronic computing, communication or data storage device you have owned or leased since January 2007 to the present, including but not limited to the following examples and categories of devices: computers, tablets, cellular phones, iPhones, iPads, smartphones, personal digital assistants, USB devise, flash drives, DVD's, CO's, external hard drives, cameras, video recorders, or any other electronic computing, communication or data storage device.” Although the interrogatory and production requests were served upon the plaintiff on November 2014, the plaintiff did not respond to the interrogatory with a list of devices until after the hearing with the court on November 9, 2015.[6] The only device listed when the answer was provided in 2015 which could be examined by the forensic examiner was the Toshiba Satellite 500 BG i3 laptop purchased sometime in 2010. At the November 9, 2015 hearing before the court addressing the motion for an order of compliance the parties agreed to the disclosure of the computer and an exchange of search terms that were to be utilized in the forensic review. The parties entered into discussion about the Forensic Examination Protocol Agreement (which contained the search terms proposed by the Defendants) with a draft shared on January 19, 2016. The final Agreement was signed on February 2, 2016. (Affidavit of Elizabeth McKenna 2016, ¶¶ 4, 5, 6, and 7) (Exhibit A). The computer was sent to Alloy Group and in particular Mr. Christopher Brinkworth was to oversee the digital analysis. It was this forensic review and the non-results which have precipitated the motion for sanctions now before the court. The November 2015 court agreement and the search terms were clearly enunciated for all of the parties. Therefore, there is no question that the court's order and the compliance with the discovery was clear to all parties. In fact, the request and the disclosure of the computer systems was a part of the ongoing discovery between the parties since October 2014. The plaintiff requested an extension of time and thereafter notified the court that he had complied with the discovery request such that it is presumed he was on notice that his digital programs were subject to discovery.

*3 The plaintiff argues that the problems with the computer which eliminated information was accidental and not his intention to violate any of the court orders or the agreements that were entered into between the parties. This is the focus of the motion for sanctions. Testimony was introduced by the forensic expert, Mr. Christopher Brinkworth and the plaintiff to address the second element considered by the court for the motion for sanctions. Mr. Christopher Brinkworth testified that in accordance with the protocol established he was to oversee the forensic analysis of this computer. He followed his normal procedure and was doing a forensic computer imaging which is accomplished by extracting the hard drive and does not require turning the computer on. Mr. Brinkworth was to perform the search based upon the Forensic Protocol Agreement. (Exhibit A.) The findings or lack thereof by Mr. Brinkworth caused the filing of the motion for sanctions. The plaintiff testified that he did remove the information from the computer but it was accidental. “In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear ... This requirement poses a legal question that we will review de novo ... Second, the record must establish that the order was in fact violated ... Third, the sanction imposed must be proportional to the violation, this requirement poses a question for the discretion of the trial court ...” (Internal quotation marks omitted.) Usowski v. Jacobson, 267 Conn. 73, 85, 836 A.2d 1167 (2003); Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17–18, 776 A.2d 1115 (2001).

Based upon the actions of all the parties, it is clear that the plaintiff was obligated to provide the computer for a forensic analysis. The issue for the motion is whether there was a violation of a court order.

The plaintiff in his objection argues that the defendant has no evidence that he intentionally destroyed evidence on his laptop or there is another undisclosed storage device containing the information. The plaintiff has chosen to ignore the testimony of the forensic analyst who examined the device provided to him and the report of this expert about the wiping of the computer. The plaintiff also argues that the defendants are not prejudiced by any absence because they have received paper discovery. This argument ignores the question of whether the plaintiff has provided all of the relevant material even in paper form given the latest behavior.

The testimony and evidence presented at the hearing before this court clearly established that the plaintiff knew as early as August 19, 2014 that the defendants were looking at the computers and electronic devices of the plaintiff to defend against this action and to aid in their allegations as to the behavior of the plaintiff. Even giving the plaintiff an opportunity to deny his actual knowledge of the initial request, there came a time that the plaintiff answered the interrogatories and production propounded by the defendants during which he clearly identified the electronic devices. Prior to the disclosure, the plaintiff represented to the court on at least two occasions that he had complied with the responses to the interrogatories and production request in response to the defendants. On January 23, 2015, the plaintiff not only submitted a Notice of Compliance but also filed an Objection to the Motion for Nonsuit stating, “Entry is inappropriate. Concurrent with the filing of this motion Plaintiff has complied with and objected to Defendants' interrogatories and requests for production. Defendants' 46 interrogatories and 51 requests for production covered multiple entities, spanned nearly fifteen years of time, and sought review and production of potentially thousands of emails and other documents. Additional time was necessary to put this material together.” This objection confirms that in January 2015, the plaintiff was on notice of the request for the computer and the digital information. The plaintiff did not file objections with the court as to the discovery and thus no objections were pending although he refers to objections tangentially. In addition to this objection the plaintiff filed a Notice of Compliance with the discovery which the court later learned was not accurate because no answers or documents were provided. This led to the second Motion for an Order on September 29, 2015 when after several attempts by the defendants to obtain compliance with the August 19, 2014 interrogatories and production, the plaintiff once again on October 13 and 15, 2015 falsely relayed his compliance to this court. (See Affidavit of McKenna Docket Entry # 154 and Notice of Compliance Docket Entry # 155, 156.) On November 9, 2015, the parties appeared for a hearing on the motion for an order of compliance. For the third time the plaintiff agreed to comply with the interrogatories and production request. This request clearly included the production of his computer and the selection of search terms to complete a forensic analysis. This court ordered discovery led the plaintiff to file responses on November 24, 2015. As a part of the responses the plaintiff identified the Toshiba computer which was the subject of the forensic analysis. When the computer was sent to Mr. Brinkworth, he ran a search and found that there was low generated information. He then discovered that the operating system was re-installed on January 26, 2016 and the pre-existing system had been wiped out. He testified that the pre installation cannot be accidentally done and that there is no way this could be done without knowing that you were wiping out old files. He testified that what was done cannot be accomplished by just hitting one button but there are blocks to the process.

*4 The plaintiff testified that he had difficulty with the Toshiba computer. He stated that in January 2016, the computer would turn on but would not operate. He testified that he did not intend to delete the hard drive. He confirmed that prior to this time the computer contained all of his correspondence, email and files of clients. He testified that he was not attempting to limit the information on the computer. His argument was “the information is no longer recoverable from an outdated computer.” However, contrasting this testimony with the forensic expert, there is clear testimony that the plaintiff utilized two external hard drives and transferred files. Mr. Brinkworth testified that his analysis indicated that there were at some point before the files were removed 20,000 files. He can identify the names of the external hard drives and can definitely state that the device attached on January 31, 2016 was an external hard drive. He determined that it was not a cell phone utilized but there were two separate files that were accessed and transferred over. The expert's testimony confirmed that it was not one single act of accidentally hitting a button but the actions in transferring files required definitive action on the part of the plaintiff. The external hard drives that were identified by the expert were not provided to the defendants as part of the production compliance.

If the computer merely malfunctioned as the plaintiff contends and he was fully complying with discovery obligations, as he states, he would not have provided a non-operating computer which had been compromised by his attempts to transfer files. The complete discovery would include a statement of the malfunction and the documents transferred to an external device. In responding to the discovery or at the time of the alleged technical difficulty with the computer the plaintiff was obligated to convey the operating difficulty and disclose any steps taken to preserve the documents. Instead, the plaintiff made, according to the expert testimony many intrusions into the Toshiba computer and failed to disclose these actions to the defendants until the forensic expert disclosed them. This behavior follows the continual attempts by the plaintiff to thwart discovery. At every turn in the discovery process, the plaintiff has resisted providing the requested discovery. He contends at this point that any deleted information is not relevant or prejudicial to the defendants because he has provided written documents. This argument is not supported by the months of delay and misrepresentations to this court. If the sole problem with the laptop was age then the plaintiff had every opportunity to address this concern before providing the laptop to Alloy. The plaintiff's claim of this sudden problem on the eve of disclosure is more than circumstantial given the history of noncompliance since the filing of the discovery request in August of 2014.

Having recognized that the expert provided profound information that the plaintiff took action to transfer and delete files without disclosing his actions to the defendants, this court finds that the plaintiff violated the order of this court and reviews the request for sanctions. “... [t]he design of rules of practice is both to facilitate business and to advance justice, they will be interpreted liberally in any case where it shall be manifest that strict adherence to them will work surprise or injustice ... Rules are a means to justice, and not an end in themselves. Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of practice. Therefore, although dismissal of an action is not an abuse of discretion where a party shows deliberate, contumacious or unwarranted disregard for the court authority ... the court should be reluctant to employ the sanction of dismissal except to employ as a last resort.” Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16–17, 776 A.2d 1115 (2001). Although this court has received extensive information of the plaintiff's disregard of the orders of this court, in following Millbrook, it liberally applies the rules in a manner so as to avoid prejudice and allow all parties to have their action decided by a trial of the matter. Therefore, the appropriate sanctions for the plaintiff's deletion and/or destruction of the files in the Toshiba computer will be an award of attorneys fees, expert fees and forensic analysis fees. The defendants will provide the court with an affidavit of attorney fees for the filing of the motion for an order of compliance, the motion for sanctions and the hearing on November 9, 2015 and March 21, 2016. Additionally, the plaintiff shall provide all external devices which were utilized to access, transfer or delete any file in the Toshiba computer which was the subject of the forensic review no later than July 12, 2016. Lastly, at the time of trial, this court will entertain a motion to include a jury charge of adverse inference regarding the destruction of evidence, if necessary, as to the defenses.